3,500,000 Shares
American Disposal Services, Inc.
Common Stock
UNDERWRITING AGREEMENT
________, 1997
Xxxxxxxxxxx & Co., Inc.
Credit Suisse First Boston Corporation
c/o Oppenheimer & Co., Inc.
Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several
Underwriters named in
Schedule I attached hereto.
Gentlemen:
American Disposal Services, Inc., a Delaware corporation (the
"Company"), proposes to sell to you and the other underwriters named in Schedule
I to this Agreement (the "Underwriters"), for whom you are acting as
Representatives, an aggregate of 3,500,000 shares (the "Firm Shares") of the
Company's common stock, $0.01 par value (the "Common Stock"). In addition, the
Company proposes to grant to the Underwriters an option to purchase up to an
additional 525,000 shares (the "Option Shares") of Common Stock from it for the
purpose of covering over-allotments in connection with the sale of the Firm
Shares. The Firm Shares and the Option Shares are together called the "Shares."
1. SALE AND PURCHASE OF THE SHARES. On the basis of the
representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at $____ per share (the "Initial Price"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I to
this Agreement.
(b) The Company grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares
at the Initial Price. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage (adjusted by the Representatives
to eliminate fractions) of the total number of Option Shares to be
purchased by the Underwriters as such Underwriter is purchasing of the Firm
Shares. Such option may be exercised only to cover over-allotments in the
sales of the Firm Shares by the Underwriters and may be exercised in whole
or in part at any time on or before 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date (as defined below), and
only once thereafter within 30 days after the date of this Agreement, in
each case upon written or telegraphic notice, or verbal or telephonic
notice confirmed by written or telegraphic notice, by the Representatives
to the Company no later than 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date or at least two business
days before the Option Shares Closing Date (as defined below), as the case
may be, setting forth the number of Option Shares to be purchased and the
time and date (if other than the Firm Shares Closing Date) of such
purchase.
2. DELIVERY AND PAYMENT. Delivery by the Company of the Firm Shares
to the Representatives for the respective accounts of the Underwriters, and
payment of the purchase price by certified or official bank check or checks
payable in New York Clearing House (same day) funds to the Company, shall take
place at the offices of Xxxxxxxxxxx & Co., Inc., at Xxxxxxxxxxx Xxxxx, Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time,
on the third business day following the date of this Agreement, provided,
however, that if the Shares sold hereunder are priced after 4:30 p.m., New York
time, on any business day, payment and delivery in respect of the Firm Shares
shall take place on the fourth business day following the date of this
Agreement; if it is determined that settlement within the foregoing time frame
is not feasible, then payment and delivery in respect of the Firm Shares shall
occur at such time on such other date, not later than 10 business days after the
date of this Agreement, as shall be agreed upon by the Company and the
Representatives (such time and date of delivery and payment are called the "Firm
Shares Closing Date").
In the event the option with respect to the Option Shares is
exercised, delivery by the Company of the Option Shares to the Representatives
for the respective accounts of the Underwriters and payment of the purchase
price by certified or official bank check or checks payable in New York Clearing
House (same day) funds to the Company shall take place at the offices of
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Xxxxxxxxxxx & Co., Inc. specified above at the time and on the date (which may
be the same date as, but in no event shall be earlier than, the Firm Shares
Closing Date) specified in the notice referred to in Section 1(b) (such time and
date of delivery and payment are called the "Option Shares Closing Date"). The
Firm Shares Closing Date and the Option Shares Closing Date are called,
individually, a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such names
and shall be in such denominations as the Representatives shall request at least
two full business days before the Firm Shares Closing Date or, in the case of
Option Shares, on the day of notice of exercise of the option as described in
Section l(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, at least one
full business day before the Firm Shares Closing Date (or the Option Shares
Closing Date in the case of the Option Shares).
3. REGISTRATION STATEMENT AND PROSPECTUS; PUBLIC OFFERING. The
Company has prepared in conformity with the requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the published rules and
regulations thereunder (the "Rules") adopted by the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (No.
________), including a preliminary prospectus relating to the Shares, and has
filed with the Commission the registration statement and such amendments thereto
as may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereto) and of the related
preliminary prospectus have heretofore been delivered by the Company to you.
The Company may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Securities Act for the purpose of registering
additional Shares, which registration shall be effective upon filing with the
Commission. The term "Registration Statement" means the Registration Statement
as amended at the time and on the date it becomes effective (the "Effective
Date"), including all exhibits and information, if any, deemed to be part of the
Registration Statement pursuant to Rule 424(a), Rule 430A and Rule 462(b) of the
Rules. The term "preliminary prospectus" means any preliminary prospectus (as
described in Rule 430 of the Rules) included at any time as a part of the
Registration Statement. The term "Prospectus" means the prospectus in the form
first used to confirm sales of the Shares (whether such prospectus was included
in the Registration Statement at the time of effectiveness or was subsequently
filed with the Commission pursuant to Rule 424(b) of the Rules) or the
preliminary prospectus forming part of the Registration Statement at the time it
was declared effective together with the term sheet permitted under Rule 434(b)
and filed with the Commission pursuant to Rule 424(b), as applicable.
The Company understands that the Underwriters propose to make a public
offering of the Shares, as set forth in and pursuant to the Prospectus, as soon
after the Effective Date and the date of this Agreement as the Representatives
deem advisable. The Company hereby confirms that the Underwriters and dealers
have been authorized to distribute or cause to be distributed each preliminary
prospectus and are authorized to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters).
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4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Underwriter as follows:
(a) On the Effective Date the Registration Statement complied, and on
the date of the Prospectus, on the date any post-effective amendment to the
Registration Statement or any related registration statement filed with the
Commission pursuant to Rule 462(b) of the Rules shall become effective, on
the date any supplement or amendment to the Prospectus is filed with the
Commission and on each Closing Date, the Registration Statement and the
Prospectus (and any amendment thereof or supplement thereto) will comply in
all material respects with the applicable provisions of the Securities Act
and the Rules and the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations of the Commission thereunder;
the Registration Statement did not, as of the Effective Date, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and on the other dates referred to above neither
the Registration Statement nor the Prospectus, nor any amendment thereof or
supplement thereto, will contain any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading. When any
related preliminary prospectus was first filed with the Commission (whether
filed as part of the Registration Statement or any amendment thereto or
pursuant to Rule 424(a) of the Rules) and when any amendment thereof or
supplement thereto was first filed with the Commission, such preliminary
prospectus as amended or supplemented complied in all material respects
with the applicable provisions of the Securities Act and the Rules and did
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading. The Company makes no representation
or warranty as to any information contained in or omitted from (i) the
paragraphs with respect to stabilization or affiliate transactions on the
inside front cover page of the Prospectus and (ii) the statements contained
under the caption "Underwriting" in the Prospectus. The Company
acknowledges that such statements constitute the only information furnished
in writing by the Representatives on behalf of the several Underwriters
specifically for inclusion in the Registration Statement, any preliminary
prospectus or the Prospectus.
(b) All contracts and other documents required to be filed as
exhibits to the Registration Statement have been filed with the Commission
as exhibits to the Registration Statement.
(c) The financial statements of the Company (including all notes
thereto) included in the Registration Statement and Prospectus fairly
present the financial position, the results of operations, stockholders'
equity and cash flows and the other information purported to be shown
therein of the Company at the respective dates and for the respective
periods to which they apply; and such financial statements have been
prepared
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in conformity with generally accepted accounting principles, consistently
applied throughout the periods involved, and all adjustments necessary for
a fair presentation of the results for such periods have been made. There
are no schedules required to be included in the Registration Statement in
order to present fairly in all material respects the information required
to be stated therein; and the historical financial information and
statistical data set forth in the Prospectus under the captions "Summary
Consolidated Financial Information," "Capitalization," and "Selected
Consolidated Financial Data" are fairly stated in all material respects in
relation to the financial statements from which they have been derived.
The pro forma financial data included in the Registration Statement and the
Prospectus present fairly the information shown therein, comply in all
material respects with the requirements of the Securities Act and the Rules
and Regulations with respect to pro forma financial statements, have been
properly compiled on the pro forma basis described therein and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein.
(d) Each of Ernst & Young LLP and Xxxxxx Xxxxxxxx LLP, whose reports
are filed with the Commission as a part of the Registration Statement, are
and, during the periods covered by their reports, were independent public
accountants as required by the Securities Act and the Rules.
(e) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware. Each
subsidiary of the Company has been duly incorporated or formed and is an
existing corporation in good standing under the laws of the jurisdiction of
its incorporation or organization. The Company has no subsidiary or
subsidiaries other than as set forth on Schedule II and Schedule III hereto
(collectively, the "Subsidiaries") and does not control, directly or
indirectly, any other corporation, partnership, joint venture, association
or other business organization. Each of the Company and its subsidiaries
is duly qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its assets or properties
(owned, leased or licensed) or the nature of its business makes such
qualification necessary, except for such jurisdictions where the failure to
so qualify individually or in the aggregate would not have a material
adverse effect on the assets or properties, business, results of operations
or financial condition of the Company and its subsidiaries, taken as a
whole, and the Company has not received any claim or notice from any
official authority in any jurisdiction that it is required to be qualified
or licensed to do business in any such jurisdiction in which it is not so
qualified or licensed. Except as disclosed in the Registration Statement
and the Prospectus, the Company and its subsidiaries do not own, lease or
license any asset or property or conduct any business outside the United
States of America. Each of the Company and its subsidiaries has all
requisite corporate power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and from
all governmental or regulatory bodies or any other person or entity, to
own, lease and license its assets and
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properties and conduct its businesses as now being conducted and as
described in the Registration Statement and the Prospectus, except for such
authorizations, approvals, consents, orders, licenses, certificates and
permits which, if not obtained, would not have a material adverse effect on
the assets or properties, business, results of operations or financial
condition of the Company and its subsidiaries, taken as a whole; no such
authorization, approval, consent, order, license, certificate or permit
contains a materially burdensome restriction other than as disclosed in the
Registration Statement and the Prospectus; and the Company has all such
corporate power and authority, and such authorizations, approvals,
consents, orders, licenses, certificates and permits to enter into, deliver
and perform this Agreement and to issue and sell the Shares (except as may
be required under the Securities Act, the Exchange Act and state and
foreign Blue Sky laws).
(f) Except as disclosed in the Registration Statement and the
Prospectus, the Company owns or possesses adequate and enforceable rights
to use all (to the extent any of them exist) patents, patent applications,
trademarks, trademark applications, service marks, copyrights, copyright
applications, licenses and other similar rights (collectively, the
"Intangibles") necessary for the conduct of its business as now being
conducted and as described in the Registration Statement and the
Prospectus. The Company has not infringed, is not infringing, and has not
received any notice of infringement of, any Intangible of any other person
and the Company does not know of any basis therefor except for such
infringements which individually or in the aggregate would not have a
material adverse effect on the assets or properties, business, results of
operations or financial condition of the Company and its subsidiaries,
taken as a whole. The Company has not received any notice of infringement
of any of its Intangibles and the Company does not know of any basis
therefor.
(g) Each of the Company and its subsidiaries has good and marketable
title in fee simple to each of the items of personal property which are
reflected in the financial statements referred to in Section 4(c) or are
referred to in the Registration Statement and the Prospectus as being owned
by it and valid and enforceable leasehold interests in each of the items of
real and personal property which are referred to in the Registration
Statement and the Prospectus as being leased by it, in each case free and
clear of all liens, encumbrances, claims, security interests and defects,
other than those described in the Registration Statement and the Prospectus
and other than those that could not materially affect the value thereof or
materially interfere with the use made or presently contemplated to be made
thereof by them.
(h) Except as disclosed in the Registration Statement and the
Prospectus, there is no litigation or governmental or other proceeding or
investigation before any court or before or by any public body or board
pending or, to the Company's knowledge, threatened (and the Company does
not know of any basis therefor) against, or involving the assets,
properties or businesses of, the Company or any of its subsidiaries which,
if determined adversely to the Company or any of its subsidiaries, would
materially
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adversely affect the value or the operation of any such assets or
properties or the business, results of operations or financial condition of
the Company and its subsidiaries, taken as a whole, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as described
therein, there has not been any material adverse change in the assets or
properties, business, results of operations or financial condition of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business; each of the Company and
its subsidiaries has not entered into any transaction, other than in the
ordinary course of business, that is material to the Company and its
subsidiaries, taken as a whole; each of the Company and its subsidiaries
has not sustained any material loss or interference with its assets,
businesses or properties from fire, explosion, earthquake, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
any court or legislative or other governmental action, order or decree.
Since the date of the latest balance sheet included in the Registration
Statement and the Prospectus, except as reflected in the Registration
Statement and the Prospectus, each of the Company and its subsidiaries has
not undertaken any liability or obligation, direct or contingent, except
for liabilities or obligations undertaken in the ordinary course of
business.
(j) Each agreement listed in the Exhibits to the Registration
Statement is in full force and effect and is valid and enforceable by the
Company or one of its subsidiaries in accordance with its terms, except
where the failure of any such agreement to be in full force and effect and
valid and enforceable by the Company or one of its subsidiaries in
accordance with its terms would not have a material adverse effect on the
assets or properties, business, results of operations or financial
condition of the Company and its subsidiaries, taken as a whole, assuming
the due authorization, execution and delivery thereof by each of the other
parties thereto. Neither the Company, nor to the best of the Company's
knowledge, any other party is in default in the observance or performance
of any term or obligation to be performed by it under any such agreement,
and no event has occurred which with notice or lapse of time or both would
constitute such a default which default or event would have a material
adverse effect on the assets or properties, business, results of operations
or financial condition of the Company and its subsidiaries, taken as a
whole. No default exists, and no event has occurred which with notice or
lapse of time or both would constitute a default, in the due performance
and observance of any term, covenant or condition, by the Company of any
other indenture, mortgage, deed of trust, note or any other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which any of them or their properties or businesses is bound or affected
which default or event would have a material adverse effect on the assets
or properties, business, results of operations or financial condition of
the Company and its subsidiaries, taken as a whole.
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(k) Each of the Company and its subsidiaries is not in violation of
any term or provision of its charter or by-laws or of any franchise,
license, permit, judgment, decree, order, statute, rule or regulation,
where the consequences of such violation would have a material adverse
effect on the assets or properties, business, results of operations or
financial condition of the Company.
(l) Neither the execution, delivery and performance of this Agreement
by the Company nor the consummation of any of the transactions contemplated
hereby or thereby (including, without limitation, the issuance and sale by
the Company of the Shares) will (i) give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with or
result in the breach of any term or provision of, or constitute a default
(or any event which with notice or lapse of time or both would constitute a
default) under, or require any consent or waiver under, or result in the
execution or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or any of its subsidiaries pursuant to
the terms of, any indenture, mortgage, deed of trust, note or other
agreement or instrument to which the Company or any of its subsidiaries, is
a party or by which any of them or their properties or businesses is bound,
or any franchise, license, permit, judgment, decree, order, statute, rule
or regulation applicable to the Company or any of its subsidiaries, except
for such terminations, accelerations, conflicts, breaches, defaults and
events which would not, individually or in the aggregate, result in a
material adverse effect on the assets or properties, business, results of
operations or financial condition of the Company and its subsidiaries,
taken as a whole, or (ii) violate any provision of the charter or by-laws
of the Company or any of its subsidiaries.
(m) The Company has an authorized and outstanding capitalization as
set forth under the caption "Capitalization" in the Prospectus. All of the
outstanding shares of Common Stock have been duly and validly authorized
and have been duly and validly issued and are fully paid and nonassessable
and none of them was issued in violation of any preemptive or other similar
statutory right. The Shares, when issued and sold pursuant to this
Agreement, will be duly and validly issued, fully paid and nonassessable
and none of them will be issued in violation of any preemptive or other
similar statutory right. Except as disclosed in the Registration Statement
and the Prospectus, there is no outstanding option, warrant or other right
calling for the issuance of, and no commitment, plan or agreement to issue,
any share of stock of the Company or any security convertible into, or
exercisable or exchangeable for, stock of the Company. The Common Stock
and the undesignated preferred stock, $0.01 par value (the "Preferred
Stock") and the Shares conform to all statements in relation thereto
contained in the Registration Statement and the Prospectus.
(n) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as described
or referred to therein, the Company has not (i) issued any securities or
incurred any liability or obligation, direct or
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contingent, for borrowed money, (ii) entered into any transaction not in
the ordinary course of business or (iii) declared or paid any dividend or
made any distribution on any shares of its stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or otherwise acquire any
shares of its stock.
(o) No holder of any security of the Company has any right to have
any security owned by such holder included in the Registration Statement or
to demand separate registration of any security owned by such holder during
the period ending 180 days from the date of this Agreement. The Company
has obtained from all officers and directors of the Company and
Charterhouse Equity Partners, L.P., Charterhouse Equity Partners II, L.P.
and CDI Equity, LLC, who together hold _________ shares of Common Stock
(including _________ shares of Common Stock issuable upon exercise of stock
options and warrants), their enforceable written agreement that for a
period of at least 180 days from the date of this Agreement they will not,
without the prior written consent of the Representatives, sell, offer to
sell, distribute, pledge, grant any option for the sale of, or otherwise
dispose of, directly or indirectly, or encumber, or exercise any
registration rights with respect to, any shares of Common Stock, any
options or warrants to purchase any shares of Common Stock, or any
securities convertible into or exchangeable for shares of Common Stock now
owned by them or hereafter acquired or with respect to which they have or
hereafter acquire the power of disposition. All other shares of Common
Stock which are outstanding or issuable upon the exercise of stock options
or warrants or the conversion of debt instruments constitute "restricted
securities" within the meaning of Rule 144 under the Securities Act and the
Rules for which the applicable holding period began no earlier than
____________.
(p) All necessary corporate action has been duly and validly taken
by the Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares. This Agreement has been
duly and validly executed and delivered by the Company and constitutes and
will constitute the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except (A) as
the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether considered in proceedings in
equity or at law) and (B) with respect to this Agreement, to the extent
that rights to indemnity or contribution under this Agreement may be
limited by federal, state or foreign securities laws or the public policy
underlying such laws.
(q) Each of the Company and its subsidiaries is conducting its
business in compliance with all applicable laws, rules and regulations of
the jurisdictions in which it is conducting business, including, without
limitation, all applicable local, state and federal environmental laws and
regulations, except where the failure to be so in compliance would not have
a material adverse effect on the assets or properties, business,
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results of operations or financial condition of the Company and its
subsidiaries, taken as a whole.
(r) No transaction has occurred between or among the Company and
any of its officers or directors or any affiliate or affiliates of any such
officer or director that is required to be described in and is not
described in the Registration Statement and the Prospectus.
(s) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of any of the Shares.
(t) The Company has filed all federal, state, local and foreign tax
returns which are required to be filed through the date hereof, or has
received extensions thereof, and has paid all taxes shown on such returns
and all assessments received by it, except where the failure to file,
extend the due date of or pay the same, individually or in the aggregate
would not have a material adverse effect on the assets or properties,
business, results of operations or financial condition of the Company and
its subsidiaries, taken as a whole.
(u) The Shares have been approved for quotation on the National
Association of Securities Dealers Automated Quotation ("Nasdaq") National
Market, subject to official notice of issuance.
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 6(A)(a).
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect, and no
order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information
on the part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Representatives.
(c) The representations and warranties of the Company contained in
this Agreement and in the certificates delivered pursuant to Section 5(d)
shall be true and
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correct when made and on and as of each Closing Date as if made on such
date and the Company shall have performed all covenants and agreements and
satisfied all the conditions contained in this Agreement required to be
performed or satisfied by it at or before such Closing Date.
(d) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of the chief executive or chief operating officer and the chief financial
officer or chief accounting officer of the Company, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that the representations
and warranties of the Company in this Agreement are true and correct on and
as of such Closing Date with the same effect as if made on such Closing
Date and the Company has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be
performed or satisfied by it at or prior to such Closing Date.
(e) The Representatives shall have received at the time this
Agreement is executed and on each Closing Date a letter or letters signed
by Ernst & Young LLP, addressed to the Representatives and dated,
respectively, the date of this Agreement and each such Closing Date, in
form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Securities Act
and the Rules, that the response to Item 10 of the Registration Statement
is correct insofar as it relates to them and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules, if any, and pro forma financial
statements included in the Registration Statement and the Prospectus
and reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Securities Act and
the Rules;
(ii) on the basis of a reading of the amounts included in the
Registration Statement and the Prospectus under the headings "Summary
Consolidated Financial Information" and "Selected Consolidated
Financial Data"; a reading of the minutes of the meetings of the
stockholders and directors and finance and audit committees of the
Company; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company as
to transactions and events subsequent to the date of the latest
audited financial statements, nothing came to their attention which
caused them to believe that:
(A) the amounts in "Summary Consolidated Financial
Information" and "Selected Consolidated Financial Data" included
in the Registration Statement and the Prospectus do not agree
with the
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corresponding amounts in the audited financial statements from
which such amounts were derived; or
(B) the audited financial statements as of and for the
three years ended December 31, 1996 included in the Registration
Statement (i) do not comply in form in all material respects with
the applicable accounting requirements of the Securities Act and
the Rules and (ii) are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements; or
(C) (i) with respect to the Company there were, at a
specified date not more than five business days prior to the date
of the letter, any increases in the total current liabilities and
long-term debt of the Company or capital stock of the Company or
decreases in working capital (deficit) or total stockholders'
equity (deficit) of the Company, as compared with the amounts
shown on the Company's audited December 31, 1996 balance sheet
included in the Registration Statement and the Prospectus, or
(ii) for the period from December 31, 1996 to such specified date
not more than five business days prior to the date of the letter,
there were any increases in net losses except for increases in
net losses set forth in the Registration Statement and the
Prospectus, in which case the Company shall deliver to the
Representatives a letter containing an explanation by the Company
as to the significance thereof unless said explanation is not
deemed necessary by the Representatives;
(iii) they have performed certain other procedures as a result of
which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general
accounting records of the Company) set forth in the Registration
Statement and the Prospectus and specified by the Representatives
agrees with the accounting records of the Company; and
(iv)on the basis of a reading of the unaudited pro forma
financial statements included in the Registration Statement and the
Prospectus (the "pro forma financial statements"); carrying out
certain specified procedures; inquiries of certain officials of the
Company who have responsibility for financial and accounting matters;
and proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to
believe that the pro forma financial statements do not comply in form
in all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that
-12-
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Registration Statement and the Prospectus in this
paragraph (e) are to such documents as amended and supplemented at the date
of the letter.
(f) The Representatives shall have received at the time this
Agreement is executed and on each Closing Date a letter or letters signed
by Xxxxxx Xxxxxxxx LLP, addressed to the Representatives and dated,
respectively, the date of this Agreement and each such Closing Date, in
form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Securities Act
and the Rules, that the response to Item 10 of the Registration Statement
is correct insofar as it relates to them and stating in effect that in
their opinion the audited consolidated financial statements and financial
statement schedules, if any, included in the Registration Statement and the
Prospectus and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Securities Act
and the Rules.
References to the Registration Statement and the Prospectus in this
paragraph (f) are to such documents as amended and supplemented at the date
of the letter.
(g) The Representatives shall have received on each Closing Date from
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP, counsel for the Company, an opinion,
addressed to the Representatives and dated such Closing Date, and stating
in effect that:
(i) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware. Each Subsidiary of the Company set forth on Schedule II
hereto has been duly incorporated or formed and is an existing
corporation in good standing under the laws of the jurisdiction of its
incorporation or organization.
(ii) Each of the Company and the Subsidiaries set forth on
Schedule II hereto has all requisite corporate power and authority to
own, lease and license its assets and properties and conduct its
business as now being conducted and as described in the Registration
Statement and the Prospectus; and the Company has all requisite
corporate power and authority and all necessary governmental
authorizations, approvals, consents, orders, licenses, certificates
and permits required pursuant to New York State law, federal law and
the General Corporation Law of the State of Delaware or known to such
counsel to be required under the laws of other jurisdictions, and all
other necessary authorizations, approvals, consents, orders, licenses,
certificates and permits either called for by any contracts or other
documents of which such counsel has knowledge or which are, to such
counsel's knowledge, otherwise required, to enter into, deliver and
-13-
perform this Agreement and to issue and sell the Shares, other than
those required under the Securities Act, the Exchange Act and state
and foreign Blue Sky laws.
(iii) The Company has authorized and issued of record
capitalization as set forth under the caption "Capitalization" in the
Prospectus; the certificates evidencing the Shares are in due and
proper legal form and have been duly authorized for issuance by the
Company; all of the outstanding shares of Common Stock of the Company
have been duly and validly authorized and have been duly and validly
issued and are fully paid and nonassessable and none of them was
issued in violation of any preemptive or other similar statutory
right. The Shares, when issued and sold pursuant to this Agreement,
will be duly and validly issued, fully paid and nonassessable and none
of them will have been issued in violation of any preemptive or other
similar statutory right. To such counsel's knowledge, except as
disclosed in the Registration Statement and the Prospectus, there is
no outstanding option, warrant or other right calling for the issuance
of, and no commitment, plan or agreement to issue, any share of stock
of the Company or any security convertible into, or exercisable or
exchangeable for, stock of the Company. The Common Stock, the
Preferred Stock and the Shares conform to all statements in relation
thereto contained in the Registration Statement and the Prospectus in
all material respects.
(iv) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and
performance of this Agreement. This Agreement has been duly and
validly executed and delivered by the Company and constitutes and will
constitute the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms except
(A) as such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether considered in proceedings in equity or at law) and
(B) with respect to this Agreement, to the extent that rights to
indemnity or contribution under this Agreement may be limited by
federal, state or foreign securities laws or the public policy
underlying such laws.
(v) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the
issuance and sale by the Company of the Shares) will (i) give rise to
a right to terminate or accelerate the due date of any payment due
under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or any event which with notice
or lapse of time, or both, would constitute a default) under, or
require any consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance
-14-
upon any properties or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed
of trust, note or other agreement or instrument of which such counsel
has knowledge and to which the Company or any of its subsidiaries is a
party or by which any of them or their properties or businesses is
bound, or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation of which such counsel has knowledge and
applicable to the Company or any of its subsidiaries, except for such
terminations, accelerations, conflicts, breaches, defaults and events
which would not, individually or in the aggregate, result in a
material adverse effect on the assets or properties, business, results
of operations or financial condition of the Company and its
subsidiaries, taken as a whole, or (ii) violate any provision of the
charter or by-laws of the Company or any of its subsidiaries.
(vi) To such counsel's knowledge, no default exists, and no event
has occurred which with notice or lapse of time or both would
constitute a default, in the due performance and observance of any
term, covenant or condition, of any indenture, mortgage, deed of
trust, note or any other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which any of them or their
assets or properties or businesses is bound or affected which default
would have a material adverse effect on the assets or properties,
business, results of operations or financial condition of the Company
and its subsidiaries, taken as a whole.
(vii)To such counsel's knowledge, each of the Company and its
subsidiaries is not in violation of any term or provision of its
charter or by-laws or of any franchise, license, permit, judgment,
decree, order, statute, rule or regulation, where the consequences of
such violation would have a material adverse effect on the assets or
properties, businesses, results of operations or financial condition
of the Company and its subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of any
federal or New York State court or governmental agency or body or
under the General Corporation Law of the State of Delaware or
otherwise known to such counsel to be required is required for the
performance of this Agreement by the Company or the consummation of
the transactions contemplated hereby, except such as have been
obtained under the Securities Act, the Exchange Act and such as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the several
Underwriters.
(ix) Except as described in the Registration Statement and the
Prospectus, to such counsel's knowledge, there is no litigation or
governmental or other proceeding or investigation before any court or
before or by any public body or board pending or threatened (and such
counsel does not know of any basis
-15-
therefor) against, or involving the assets, properties or businesses
of, the Company or any of its subsidiaries which, if determined
adversely to the Company or any of its subsidiaries, would materially
adversely affect the value or the operation of any such assets or
properties or the business, results of operations or financial
condition of the Company and its subsidiaries, taken as a whole.
(x) The agreement of each of the Company, Charterhouse Equity
Partners, L.P., Charterhouse Equity Partners II, L.P. and CDI Equity,
LLC stating that for a period of 180 days from the date of the
Prospectus they will not, without the Representatives' prior written
consent, sell, offer to sell, distribute, pledge, grant any option for
the sale of, or otherwise dispose of, directly or indirectly, or
encumber, or exercise any registration rights with respect to, any
shares of Common Stock, any options or warrants to purchase any shares
of Common Stock, or any securities convertible into or exchangeable
for shares of Common Stock now owned by them or hereafter acquired or
with respect to which they have or hereafter acquire the power of
disposition has been duly and validly delivered by such persons and
constitutes a legal, valid and binding obligation of each such person
enforceable against each such person in accordance with its terms,
except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether considered in proceedings in equity or at law).
All shares of Common Stock which are outstanding or issuable upon the
exercise of stock options or warrants or the conversion of debt
instruments of which such counsel has knowledge either (i) are subject
to a written agreement obtained by the Company pursuant to Section
4(o) of this Agreement or (ii) constitute "restricted securities"
within the meaning of Rule 144 under the Securities Act and the Rules
for which the applicable holding period began no earlier than
____________.
(xi) The statements in the Prospectus under the captions "Risk
Factors--Extensive Environmental and Land Use Laws and Regulations";
"--Anti-Takeover Provisions"; "--Shares Eligible for Future Sale;
Possible Adverse Effect on Future Market Price";
"Business--Environmental Regulations; "Management --Employment
Agreements"; "--Compensation Committee Interlocks and Insider
Participation"; "--Executive Compensation"; "--1996 Stock Option
Plan"; "Certain Transactions"; "Description of Capital Stock" and
"Shares Eligible for Future Sale" insofar as such statements
constitute a summary of documents referred to therein or matters of
law, are fair summaries of the material provisions thereof and
accurately present in all material respects the information called for
with respect to such documents and matters. All contracts and other
documents required to be filed as exhibits to, or described in, the
Registration Statement of which such
-16-
counsel has knowledge have been so filed with the Commission or are
fairly described in the Registration Statement, as the case may be.
(xii) The Registration Statement, all preliminary prospectuses
and the Prospectus and each amendment or supplement thereto (except
for the financial statements and notes and other financial and
statistical data included therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the Securities Act and the Rules.
(xiii) The Registration Statement has become effective under the
Securities Act, and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are threatened, pending or
contemplated.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company and
public officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws of
the State of New York, the General Corporation Law of the State of Delaware and
the federal laws of the United States; provided that such counsel shall state
that in their opinion the Underwriters and they are justified in relying on such
other opinions. Such counsel shall also state that in connection with rendering
the opinions in (i) and (ii) of this Section 5(g), such counsel has assumed that
the corporation laws of the States of Missouri and Kansas are identical to the
General Corporation Law of the State of Delaware. Copies of such certificates
and other opinions shall be furnished to the Representatives and counsel for the
Underwriters. Such counsel shall also state that, to such counsel's knowledge,
the opinion of Xxx X. Xxxxx referred to in Section 5(h) of this Agreement is
accurate and complete, and that in their opinion, the Underwriters are justified
in relying on such opinion of Xxx X. Xxxxx.
In addition, such counsel shall state that such counsel has
participated in conferences with certain officers of, and with the accountants
and counsel for, the Company and representatives of the Representatives
concerning the preparation of the Registration Statement, the preliminary
prospectus and the Prospectus. Such counsel shall also state that although it
has made certain inquiries and investigations in connection with the preparation
of the Registration Statement, such counsel did not independently verify the
accuracy or completeness of the statements made therein or in the preliminary
prospectus or in the Prospectus and the limitations inherent in the role of
outside counsel are such that such counsel cannot and does not assume
responsibility for or pass on the accuracy and completeness of such statements,
except insofar as such statements relate to such counsel. On the basis of the
foregoing, such counsel shall state that its work in connection with this matter
did not disclose any information that caused such counsel to believe that the
Registration Statement at the time it became effective (except with respect to
the financial statements and notes and schedules thereto and other financial and
statistical data, as to which such counsel need make no statement) contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the
-17-
Prospectus as of its date and as of the date of such letter, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (other than
financial statements and other information of a statistical, accounting, or
financial nature which are or should be contained therein, as to which such
counsel shall express no view).
(h) The Representatives shall have received on each Closing Date from
Xxx X. Xxxxx, General Counsel for the Company, an opinion, addressed to the
Representatives and dated such Closing Date, and stating in effect that the
statements in the Prospectus under the caption "Business-Legal Proceedings"
insofar as such statements constitute a summary of documents referred to
therein or matters of law, are fair summaries of the material provisions
thereof and accurately present in all material respects the information
called for with respect to such documents and matters.
(i) The Representatives shall have received on each Closing Date from
McAfee & Xxxx, special counsel for the Company, an opinion, addressed to
the Representatives and dated such Closing Date, and stating in effect
that:
(i) Each Subsidiary of the Company set forth on Schedule III
hereto has been duly incorporated or formed and is an existing
corporation in good standing under the laws of the jurisdiction of its
incorporation or organization.
(ii) Each of the Subsidiaries set forth on Schedule III hereto
has all requisite corporate power and authority to own, lease and
license its assets and properties and conduct its business as now
being conducted.
(j) All proceedings taken in connection with the sale of the Firm
Shares and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and their counsel
and the Underwriters shall have received from Xxxxxx, Xxxxx & Xxxxxxx LLP a
favorable opinion, addressed to the Representatives and dated such Closing
Date, with respect to the Shares, the Registration Statement and the
Prospectus, and such other related matters, as the Representatives may
reasonably request, and the Company shall have furnished to Xxxxxx, Xxxxx &
Bockius LLP such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(k) The Representatives shall have received on each Closing Date a
certificate, including exhibits thereto, addressed to the Representatives
and dated such Closing Date, of the Secretary or an Assistant Secretary of
the Company, signed in such officer's capacity as such officer, as to the
(i) certificate of incorporation and bylaws of the Company, (ii)
resolutions authorizing the execution and delivery of the Registration
Statement, this Agreement and the performance of the transactions
contemplated by this Agreement, the Registration Statement, the Prospectus
and the offering of the Shares, and
-18-
(iii) incumbency of the person or persons authorized to execute and deliver
the Registration Statement, this Agreement and any other documents
contemplated by the offering of the Shares.
(l) The Representatives shall have received on each Closing Date
certificates of the Secretaries of State of each State where the Company or
any of its subsidiaries is incorporated and doing business as to the good
standing of the Company or such subsidiary, listing all charter documents
on file, if applicable, qualification of the Company or such subsidiary to
do business as a foreign corporation, if applicable, payment of taxes and
filing of annual reports. In addition, the Representatives shall have
received copies of all charter documents of the Company, County Disposal,
Inc. and ADS, Inc. certified by the Secretary of State of the State of such
corporation's incorporation.
6. COVENANTS OF THE COMPANY. (A) The Company covenants and agrees
as follows:
(a) The Company shall prepare the Prospectus in a form approved by
the Representatives and file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement,
or, if such second business day would be more than fifteen business days
after the Effective Date of the Registration Statement or any
post-effective amendment thereto, such earlier date as would permit such
Prospectus to be filed without filing a post-effective amendment as set
forth in Rule 430A(a)(3) under the Securities Act and shall promptly advise
the Representatives (i) when the Registration Statement shall have become
effective, (ii) when any amendment thereof or any related registration
statement filed with the Commission pursuant to Rule 462(b) of the Rules
shall have become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any
additional information, (iv) of the prevention or suspension of the use of
any preliminary prospectus or the Prospectus or of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. If contemplated by this Agreement, the Company shall prepare
and file with the Commission in conformity with the Securities Act and the
Rules a related registration statement pursuant to Rule 462(b) under the
Securities Act for the purpose of registering additional shares. The
Company shall not file any amendment of the Registration Statement or
amendment or supplement to the Prospectus unless the Company has furnished
the Representatives a copy for its review prior to filing and shall not
file any such proposed amendment or supplement to which the Representatives
reasonably object. The Company shall use its best efforts to
-19-
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act and the Rules, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the
Securities Act or the Rules, the Company promptly shall prepare and file
with the Commission, subject to the third sentence of paragraph (a) of this
Section 6(A), an amendment or supplement which shall correct such statement
or omission or an amendment which shall effect such compliance.
(c) The Company shall make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 45 days after the end of the 12-month period beginning at the end of
the fiscal quarter of the Company during which the Effective Date occurs
(or 90 days if such 12-month period coincides with the Company's fiscal
year), an earnings statement (which need not be audited) of the Company,
covering such 12-month period, which shall satisfy the provisions of
Section 11(a) of the Securities Act or Rule 158 of the Rules.
(d) The Company shall furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof) and to
each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and all amendments thereof and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Securities
Act or the Rules, as many copies of any preliminary prospectus and the
Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(e) The Company shall cooperate with the Representatives and their
counsel in endeavoring to qualify the Shares for offer and sale under the
laws of such jurisdictions as the Representatives may designate and shall
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided, however, that the Company shall not
be required in connection therewith, as a condition thereof, to qualify as
a foreign corporation or to execute a general consent to service of process
in any jurisdiction or subject itself to taxation as doing business in any
jurisdiction.
(f) For a period of five years after the date of this Agreement, the
Company shall supply to the Representatives, and to each other Underwriter
who may so request in writing, copies of such financial statements and
other periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its
-20-
capital stock and to furnish to the Representatives a copy of each annual
or other report it shall be required to file with the Commission.
(g) Without the prior written consent of the Representatives, for a
period of 180 days after the date of this Agreement, the Company shall not
issue, sell or register with the Commission, or otherwise encumber or
dispose of, directly or indirectly, any equity securities of the Company
(or any securities convertible into or exercisable or exchangeable for
equity securities of the Company), except for (i) the issuance of the
Shares pursuant to the Registration Statement, (ii) the issuance of shares
pursuant to the exercise of outstanding options under the Company's
existing stock option plans, (iii) in connection with an acquisition by the
Company of another entity pursuant to which the Company sells or transfers
any of its shares of Common Stock to a third party as part or all of the
purchase price of such entity; provided, however, that prior to any sale or
transfer, such third party shall have agreed in writing with the
Representatives that it will not sell, offer to sell, distribute, pledge,
grant any option for the sale of, or otherwise dispose of, directly or
indirectly, or encumber, or exercise any registration rights with respect
to, such shares of Common Stock, any options or warrants to purchase any
shares of Common Stock, or any securities convertible into or exchangeable
for shares of Common Stock for the remainder of the 180 days after the
date of this Agreement, and (iv) the sale or transfer by the Company of
shares of Common Stock in connection with the hiring of officers or
directors not previously employed by the Company; provided, however, that
prior to any sale or transfer, such officer or director shall have agreed
in writing with the Representatives that he or she will not sell, offer to
sell, distribute, pledge, grant any option for the sale of, or otherwise
dispose of, directly or indirectly, or encumber, or exercise any
registration rights with respect to, such shares of Common Stock, any
options or warrants to purchase any shares of Common Stock, or any
securities convertible into or exchangeable for shares of Common Stock for
the remainder of the 180 days after the date of this Agreement.
(h) On or before completion of this offering, the Company shall make
all filings required under applicable securities laws and by the Nasdaq
National Market (including any required registration under the Exchange
Act).
(B) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses of the
Company incident to the public offering of the Shares and the performance of the
obligations of the Company under this Agreement including those relating to (i)
the preparation, printing, filing and distribution of the Registration Statement
including all exhibits thereto, each preliminary prospectus, the Prospectus, all
amendments and supplements to the Registration Statement and the Prospectus, and
the printing, filing and distribution of this Agreement; (ii) the preparation
and delivery of certificates for the Shares to the Underwriters; (iii) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the various jurisdictions referred to in Section
6(A)(e), including the fees and disbursements of
-21-
counsel for the Underwriters in connection with such registration and
qualification and the preparation, printing, distribution and shipment of
preliminary and supplementary Blue Sky memoranda (it being understood that the
Company shall not be responsible for the fees and disbursements of counsel for
the Underwriters other than as described in this Section 6(B)(iii)); (iv) the
furnishing (including costs of shipping and mailing) to the Representatives and
to the Underwriters of copies of each preliminary prospectus, the Prospectus and
all amendments or supplements to the Prospectus, and of the several documents
required by this Section to be so furnished, as may be reasonably requested for
use in connection with the offering and sale of the Shares by the Underwriters
or by dealers to whom Shares may be sold; (v) the filing fees of the National
Association of Securities Dealers, Inc. in connection with its review of the
terms of the public offering; (vi) the furnishing (including costs of shipping
and mailing) to the Representatives and to the Underwriters of copies of all
reports and information required by Section 6(A)(f); and (vii) inclusion of the
Shares for quotation on the Nasdaq National Market.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all losses, claims, damages and liabilities,
joint or several (including any reasonable investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted), to which they, or
any of them, may become subject under the Securities Act, the Exchange Act
or other federal or state law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus, the Registration Statement or
the Prospectus or any amendment thereof or supplement thereto, or arise out
of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or arise out of or are based upon any
misrepresentation or breach of any representation or warranty by the
Company contained in this Agreement; provided, however, that such indemnity
shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of the Shares to any person by such
Underwriter (i) if such untrue statement or omission or alleged untrue
statement or omission was made in such preliminary prospectus, the
Registration Statement or the Prospectus, or such amendment or supplement,
in reliance upon and in conformity with information furnished in writing to
the Company by the Representatives on behalf of any Underwriter
specifically for use therein or, (ii) as to any preliminary prospectus,
with respect to any Underwriter, to the extent that any such loss, claim,
damage or liability of such Underwriter results from an untrue statement of
a material fact contained in, or the omission of a material fact from, such
preliminary prospectus, which untrue statement or omission was corrected in
the Prospectus, if such Underwriter sold Shares to the person alleging such
loss, claim, damage or liability
-22-
without sending or giving, at or prior to the written confirmation of such
sale, a copy of the Prospectus, unless such failure resulted from the
failure of the Company to deliver copies of the Prospectus to such
Underwriter on a timely basis to permit such sending or giving. This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, each director of the Company, and each officer of
the Company who signs the Registration Statement, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only insofar
as such losses, claims, damages or liabilities arise out of or are based
upon any untrue statement or omission or alleged untrue statement or
omission which was made in any preliminary prospectus, the Registration
Statement or the Prospectus, or any amendment thereof or supplement
thereto, contained in the last paragraph of the cover page, in the
paragraph relating to stabilization or the paragraph relating to affiliate
transactions on the inside front cover page of the Prospectus and the
statements with respect to the public offering of the Shares under the
caption "Underwriting" in the Prospectus; provided, however, that the
obligation of each Underwriter to indemnify the Company (including any
controlling person, director or officer thereof) shall be limited to the
net proceeds received by the Company from such Underwriter.
(c) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 7(a) or 7(b) shall be available to
any party who shall fail to give notice as provided in this Section 7(c) if
the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice but the omission so to notify such indemnifying party of
any such action, suit or proceeding shall not relieve it from any liability
that it may have to any indemnified party for contribution or otherwise
than under this Section. In case any such action, suit or proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in, and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and the approval by
the indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses, except as
provided below and except for the reasonable costs of investigation
-23-
subsequently incurred by such indemnified party in connection with the
defense thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the employment of
counsel by such indemnified party has been authorized in writing by the
indemnifying parties, (ii) the indemnified party shall have reasonably
concluded that there may be a conflict of interest between the indemnifying
parties and the indemnified party in the conduct of the defense of such
action (in which case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified party) or
(iii) the indemnifying parties shall not have employed counsel to assume
the defense of such action within a reasonable time after notice of the
commencement thereof, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any action,
suit, proceeding or claim effected without its written consent; provided,
however, that such consent shall not be unreasonably withheld.
8. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Sections 7(a) and 7(b) is due in accordance with its terms but for any reason
is held to be unavailable from the Company or the Underwriters, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including any investigation, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting any contribution
received by the Company from persons other than the Underwriters, such as
persons who control the Company within the meaning of the Securities Act,
officers of the Company who signed the Registration Statement and directors of
the Company, who may also be liable for contribution) to which the Company and
one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Shares or, if
such allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 7 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of underwriting discounts but before deducting
expenses) received by the Company, as set forth in the table on the cover page
of the Prospectus, bear to (y) the underwriting discounts received by the
Underwriters, as set forth in the table on the cover page of the Prospectus.
The relative fault of the Company and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement or omission or alleged omission of a material fact related to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata
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allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 8, (i) in no case shall any Underwriter (except as may be provided
in the Agreement Among Underwriters) be liable or responsible for any amount in
excess of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder, and (ii) the Company shall be liable and responsible for
any amount in excess of such underwriting discount; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall
have the same rights to contribution as such Underwriter, and each person, if
any, who controls the Company within the meaning of the Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject in
each case to clauses (i) and (ii) in the immediately preceding sentence of this
Section 8. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section, notify such party or parties from whom contribution
may be sought, but the failure so to notify such party or parties from whom
contribution may be sought shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriter's obligations to contribute
pursuant to this Section 8 are several in proportion to their respective
underwriting commitments and not joint.
9. TERMINATION. This Agreement may be terminated with respect to
the Shares to be purchased on a Closing Date by the Representatives by notifying
the Company at any time
(a) in the absolute discretion of the Representatives at or before
any Closing Date: (i) if there has been any material adverse change in the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business; (ii) if on or prior to such date, any domestic or international
event or act or occurrence has materially disrupted, or in the opinion of
the Representatives will in the future materially disrupt, the securities
markets; (iii) if there has occurred any new outbreak or material
escalation of hostilities or other calamity or crisis the effect of which
on the financial markets of the United States is such as to make it, in the
judgment of the Representatives, inadvisable to proceed with the offering;
(iv) if there shall be such a material adverse change in general financial,
political or economic conditions or the effect of international conditions
on the financial markets in the United States is such as to make it, in the
judgment of the Representatives, inadvisable or impracticable to market the
Shares; (v) if trading in the Shares has been suspended by the Commission
or trading generally on the New York Stock Exchange, Inc. or on the
-25-
American Stock Exchange, Inc. has been suspended or limited, or minimum or
maximum ranges for prices for securities shall have been fixed, or maximum
ranges for prices for securities have been required, by said exchanges or
by order of the Commission, the National Association of Securities Dealers,
Inc., or any other governmental or regulatory authority; or (vi) if a
banking moratorium has been declared by any state or federal authority, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as required
by this Agreement.
If this Agreement is terminated pursuant to any of its provisions, the
Company shall not be under any liability to any Underwriter, and no Underwriter
shall be under any liability to the Company, except that (y) if this Agreement
is terminated by the Representatives or the Underwriters because of any failure,
refusal or inability on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company will, upon the
request of the Representatives, reimburse the Underwriters for all out-of-pocket
expenses (including the fees and disbursements of their counsel) incurred by
them in connection with the proposed purchase and sale of the Shares or in
contemplation of performing their obligations hereunder and (z) no Underwriter
who shall have failed or refused to purchase the Shares agreed to be purchased
by it under this Agreement, without some reason sufficient hereunder to justify
cancellation or termination of its obligations under this Agreement, shall be
relieved of liability to the Company or to the other Underwriters for damages
occasioned by its failure or refusal.
10. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters
shall fail (other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 9) to purchase on any Closing Date
the Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Representatives may find one or more substitute underwriters
to purchase such Shares or make such other arrangements as the Representatives
may deem advisable or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase such
Shares on the terms herein set forth in proportion to their respective
obligations hereunder; provided, that in no event shall the maximum number
of Shares that any Underwriter has agreed to purchase pursuant to Section 1
be increased pursuant to this Section 10 by more than one-ninth of such
number of Shares without the written consent of such Underwriter, or
-26-
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to an additional business day within which it
may, but is not obligated to, find one or more substitute underwriters
reasonably satisfactory to the Representatives to purchase such Shares upon
the terms set forth in this Agreement.
In any such case, either the Representatives or the Company shall have
the right to postpone the applicable Closing Date for a period of not more than
five business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or
Prospectus) may be effected by the Representatives and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company and without liability
on the part of the Company, except in both cases as provided in Sections 6(B),
7, 8 and 9. The provisions of this Section shall not in any way affect the
liability of any defaulting Underwriter to the Company or the nondefaulting
Underwriters arising out of such default. A substitute underwriter hereunder
shall become an Underwriter for all purposes of this Agreement.
11. MISCELLANEOUS. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers and
of the Underwriters set forth in or made pursuant to this Agreement shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Sections 7 and 8 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 6(B), 7, 8
and 9 shall survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters and the Company and their respective successors and assigns, and,
to the extent expressed herein, for the benefit of persons controlling any of
the Underwriters, or the Company, and directors and officers of the Company, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Shares from any Underwriter merely
because of such purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered or by telephone or telegraph if subsequently confirmed in
writing, (a) if to the Representatives, c/o Oppenheimer & Co., Inc., Xxxxxxxxxxx
Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxx X.
Xxxxxxxx, and (b) if to the Company, to its agent for service as such agent's
address appears on the cover page of the Registration Statement.
-27-
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
-28-
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
AMERICAN DISPOSAL SERVICES, INC.
By
----------------------------------------
Name:
Title:
Confirmed:
XXXXXXXXXXX & CO., INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
Acting severally on behalf of itself
and as representative of the several
Underwriters named in Schedule I annexed
hereto.
By Xxxxxxxxxxx & Co., Inc.
By
----------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Managing Director
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SCHEDULE I
Number of
Firm Shares to
Name Be Purchased
---- --------------
Xxxxxxxxxxx & Co., Inc.................................
Credit Suisse First Boston Corporation.................
-------------
TOTAL 3,500,000
-------------
-------------
-i-
SCHEDULE II
SUBSIDIARY STATE OF INCORPORATION
---------- ----------------------
County Disposal, Inc. Delaware
American Disposal Services of Kansas, Inc. Kansas
County Disposal (Illinois), Inc. Delaware
County Disposal (Ohio), Inc. Delaware
County Landfill, Inc. Delaware
Southwest Waste, Inc. Missouri
Xxxx'x Transfer Systems, Inc. Missouri
-ii-
SCHEDULE III
SUBSIDIARY STATE OF INCORPORATION
---------- ----------------------
ADS, Inc. Oklahoma
Pittsburg County Landfill, Inc. Oklahoma
American Disposal Services of Missouri, Inc. Oklahoma
-iii-
